Public licensing and regulation of mediators: the arguments for and against

One of the issues hotly debated in the ADR field is whether it’s time for state licensing and regulation of the practice of mediation. The following are summaries of the arguments that each side to the debate has marshaled.

In the comments below, I’d welcome readers to add arguments that I’ve overlooked. I’m not critiquing the arguments, merely collecting them. The criticism I’ll leave for another day.

The arguments in support of state licensing of mediators:

State regulation of the practice of mediation would assure the quality of mediation services by establishing best practices and setting standards of ethical conduct, increasing public confidence in ADR.

State regulation would establish a mechanism for disciplining, rehabilitating, or suspending from practice those whose conduct falls below a specified standard.

State licensing would enhance the professional standing of mediators and confer greater credibility upon the profession.

State licensing would enable mediators to market their services more effectively and to compete more nimbly in the marketplace against other service providers.

State licensing would protect mediators practicing within a defined geographic area, and give local practitioners preference over out-of-state practitioners.

Given the long-standing uneasy relationship between lawyers and mediators, state licensing of mediators would level the playing field between lawyers, who hold state-issued licenses to practice law, and mediators, who do not hold state-issued licenses to practice mediation.

State licensing would establish standards not only for mediators but also for the training and education of mediators. State regulation of mediation trainers and mediation training programs, which at present vary widely in terms of quality and effectiveness, would increase public confidence in institutions and programs that train mediators.

State regulation would ensure that mediators possess professional liability insurance to compensate consumers for losses resulting from professional negligence by mediators.

State regulation would result in a database of practitioner contact information, including office location or residence for service of process in the case of a legal proceeding or disciplinary action against the neutral.

Licensing and related fees resulting from state regulation of mediation and mediation training would generate revenue for state coffers.

The arguments against state licensing of mediators:

Apart from anecdote, no hard evidence supports state regulation of the practice of mediation to protect the public from the unethical or unskilled. At this time, no external pressures exist — such as demands by consumer watchdog or legal advocacy groups in response to actual harm to consumers caused by mediators — to place mediation practice under state regulation. The impetus comes from mediators themselves, not a concerned public.

State licensing of professional activities typically results in geographic limits on the practice of such activity, prohibiting those who are unlicensed from operating within its jurisdiction. Given the multi-jurisdictional and transnational nature of much ADR practice, state licensing of mediators would unduly burden the practice of mediation and constrain the ability of mediators to practice.

State licensing of mediators runs contrary to one of the foundational principles of mediation, self-determination. State licensing of neutrals would unfairly restrict the ability of parties to utilize a neutral of their choosing.

State regulation rests upon the articulation of standards of practice, which promote and reward conformity in behavior but work to discourage innovation. (Consider, for example, the case of opposition by some members of the bar to the legal innovation known as collaborative law.) This would have an inhibiting effect on what is still an evolving field.

Market forces and consumer preference already operate in place of state regulation, ensuring that the lion’s share of cases go to mediators with reputations for effectiveness.

The positive benefits of state regulation could be achieved through the creation of certification mechanisms by private actors who understand the profession and its needs better than would state bureaucrats and politicians.

Within the mediation profession, the differences among the various approaches to mediation practice, including the role that the neutral and participants play and how broadly or narrowly issues are defined, are significant. Given these ecumenical differences, establishing universally applicable and acceptable standards of mediation practice would be extremely difficult and take years to achieve if at all.

During economically difficult times, it is not sound policy to impose fees and erect bureaucratic barriers to the conduct of business by mediators in private practice, particularly in light of the lack of evidence to support state regulation.

5 responses to “Public licensing and regulation of mediators: the arguments for and against”

Add another on the against column: Government regulation would cost money on the budget — money that most governments don’t have right now.

Also, there are enormous inefficiencies when the government gets involved. This is part of the argument against the “public option” for healthcare. Also, in many states where the government “regulates” professions such as doctors and lawyers, the government entity doesn’t really help truly weed out the bad eggs. For example, would there be a Bar/Mediation Exam? Is there a required Residency Program (which has difficult luck even developing without regulations)? Moreover, often with the Bar and Medical Board, it is hard for the consumers to understand whether the person is a bad actor or not. For example, settlements for lawsuits are not public information; some forms of discipline in these agencies is often not reported; many complaints of unethical conduct are not investigated because of lack of resources.

Superb list Diane. We all use mediation skills, to some degree, in our every day lives. So when would state licensing and regulation come in to play? Would I be regulated when I finish my mediator opening statement, when I charge for services, when I call it “mediation” rather than a facilitated discussion with the possibility of an agreement? In Virginia when I’m mediating for the courts, I need to be on their certified list. Rosters that vouch for achievement could be used more effectively, before credentialing would be necessary.
I appreciate an open marketplace. I appreciate having AAA hotel ratings to help me make an informed decision. Rosters can help parties make an informed decision about who they use as a mediator. Rosters could assure quality through a “TripAdvisor-like” marketplace rating system while enabling mediators to market their services. If parties would rather use a local practitioner then they can make the educated decision. I certainly don’t “Buy American” when it comes to cars, but I’m educated and make the conscious decision. Out-of-state practitioners should receive preference if they are better qualified or better skilled – that ensures our local practicioners don’t receive unwarranted “tenure” simply because they live in a particular place.
Thanks for capturing the arguments in such a comprehensive way. I would love to read additional comments to this blog.